US Customs and Border ProtectionLast week Emma Grant’s line cook and 25 other undocumented employees at her bar-b-que restaurant Emma Grant’s Bar-B-Que were working the lunch shift when it was raided by Immigration and Customs Enforcement personnel, apparently at least in partial response to a recent executive order. Can the President of the United States do that? Can this be a problem for Emma Grant and her bar-b-que restaurant?

Executive Orders

Recognized since George Washington as being authorized by Article II, Section 1 of the Constitution that provides “the executive power shall be vested in a President of the United States of America,” there have been more than 13,000 issued, in one form or another, since 1789. Notable executive orders were Abraham Lincoln’s Emancipation Proclamation and Franklin Roosevelt’s mandatory registration of aliens from World War II enemy countries. FDR also holds the record, by far, of the most Executive Orders at 3,721; next closest is Woodrow Wilson at 1,803. To date, President Donald Trump has issued twelve executive orders. Suggested as undoing many of President Barack Obama’s policies, here’s a list and short summary of each. The Federal Register details the executive orders transcripts, numbers and disposition tables from Herbert Hoover to date.

The Legal Reality

But what about Emma’s exposure? Yes, as the employer of the undocumented workers, Emma Grant could have liability. Employers must verify the identity and employment authorization of each person hired after Nov. 6, 1986 and complete and retain Form I-9. Failure to do so can result in civil fines ($539 for each at the first offense and up to $21,563 for each after multiple offenses), criminal penalties (when there is a pattern or practice of violations), and debarment from government contracts.

Tilting the Scales in Your Favor

Get a completed I-9 for each employee. Undertake reasonable and diligent investigation, if appropriate. For key employees, consider undertaking steps to secure their legal residency in the United States.

Sean D’Leer and Patty O’Door are the proud owners of STD Contractors, a heavy construction business in Texas. They are starting to see more large commercial development activity and are considering hiring more laborers to staff up for what they hope to be a sustained economic recovery. However, all of the recent news about immigration and United State Supreme Court decisions is making them nervous. They are wondering if immigration law changes will affect them and, if so, how?

Recent Immigration Law Changes

The much publicized and long awaited United States Supreme Court decision in Arizona v. United States was released earlier this month. The Supremes rejected three parts of the Arizona law and upheld what was regarded by many as the “heart” of that law – a provision that allows police to check a person’s immigration status while enforcing other laws if “reasonable suspicion” exists that the person is in the United States illegally. For Texans this case is of interest only to the extent that it indicates the direction of the prevailing national wind on immigration laws and enforcement.

Perhaps a little closer to home is the Administration’s decision earlier this summer to offer immigration protection to younger undocumented immigrants through the “Deferred Action Process for Young People” program. In summary, beneficiaries of the new program must satisfy all the following requirements: (1) be 15-30 years old and have entered the U.S. before age 16; (2) have been present in the U.S. for 5 years as of June 15, 2012; (3) have maintained continuous residence; (4) have not been convicted of one serious crime or multiple minor crimes; and (5) be currently enrolled in high school, graduated or have a GED, or are honorably discharged veterans of the Coast Guard or Armed Forces.

While the “Deferred Action Process for Young People” program opens up previously unavailable immigration benefits, Sean D’Leer and Patty O’Door need not do anything about implementing it as yet.

Tilting the Scales in Your Favor

Federal law requires that employers only employ individuals who are authorized to work in the United States. Employers should be proactive in reminding their employees of the following: (1) the company complies with all immigration laws; (2) nothing in the law has changed related to the employment of individuals who can establish current legal work authorization; and (3) any material difference in the information he or she initially provided the company as it relates to their legal work authorization (immigration status) could lead to his or her termination. The Immigration Reform and Control Act of 12986 (IRCA) requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form and reviewing documents showing the employee’s identity and employment authorization. But NOTE: Employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment. Perhaps we’ll talk more about that next month.